holding that when a policy does not use language such as “atmosphere” or “watercourse” that only refers to the natural environment, the exclusion encompasses pollution of the air within a building
How later courts described this case
- holding that when a policy does not use language such as “atmosphere” or “watercourse” that only refers to the natural environment, the exclusion encompasses pollution of the air within a building
- holding pollution exclusion that did not limit its terms to atmospheric pollution applied to claim arising from release of asbestos fibers in enclosed environment
- concluding that asbestos unambiguously falls within the exclusion’s language about “other irritants, contaminants, or pollutants”
- concluding that the exclusion provision applied to asbestos even though asbestos was not specifically mentioned in the provision
Written by the judges who cited it.
The opinion
GARDEBRING, Justice
(dissenting).
We are asked in this case to decide whether the pollution exclusions in the carriers’ insurance policies exclude coverage for claims based on release of asbestos inside buildings. The majority concludes that the asbestos claims are excluded under the excess policies but included under the primary policies. The critical distinction between the *895 two policies is said to be the use of the term “atmosphere” in the primary policies, as contrasted to the word “air” in the excess policies’ pollution exclusions. The majority agrees with the Regents’ assertion that asbestos fibers were not released into the “atmosphere,” but only into the air inside the buildings, and therefore concludes that the pollution exclusion of the primary policies does not apply.
The majority’s rationale is that while the pollution of the air inside a building is harmful to the controlled environment of that building, “the contamination of the air in a building is not harmful to the surrounding natural environment, at least not until it escapes into that environment so as to cause personal injury or property damage — a claim not made here.” However, nothing in case law or the language of the policy requires that the pollution exclusion be limited to ah’ outside a building.
While dictionary definitions are not always helpful in making a legal determination, they may be at least as useful as Shakespearean quotations. In this ease, one might look, for example, to Webster’s Third New International Dictionary 138 (1971), where one definition of atmosphere is “the air of a given place or locality esp. [sic] as affected by a particular characteristic * * An example given is “the close atmosphere of the schoolroom,” indicating rather plainly that, at least according to Webster, “atmosphere” may mean indoor, as well as outdoor air. Further, beyond the meaning contained within the dictionary, there is nothing in the common sense understanding of the word atmosphere which in any sense limits it to outdoor air.
I agree with the court of appeals that to distinguish between the air inside and the air outside a building is an arbitrary distinction. The majority admits the distinction “may seem to draw a fine line.” It is indeed a fine line, one through which air passes freely. The majority would have us believe that air somehow changes its properties as it moves into or out of a building or that the air within the building is completely separate from the air outside the building. This is not the ease. Buildings are not completely contained, not “hermetically sealed.” As the court of appeals noted, “[b]uildings have doors, windows, vents, and are not vacuum sealed (particularly a state university with thousands of students and university personnel going in and out of the buildings daily).”
Because I can find nothing in the word “atmosphere” which limits its meaning to outdoor air, I respectfully dissent.